TMI Blog2019 (3) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Tribunal, since the Tribunal had noted in its Judgment all the factors in coming the conclusion, which are factual in nature, and with respect to which no perversity is demonstrated. Assessee however contended that in the later year the assessee had suffered loss in the process of selling the shares which was declared as capital loss. AO in the assessment after scrutiny accepted this declaration of the assessee and therefore the department is acting inconsistently which is not permissible. The issue of the assessee suffering loss in the subsequent year arose after the assessment in the present year was completed. If in the later year the assessee had declared a loss on capital side, we wonder whether going against such a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Assessee out of the sale of shares. In so far as the shares which the Assessee had held in excess of one year, the Commissioner of Income Tax (Appeals) (for short CIT (Appeals) had held in favour of the Assessee and treated the gain as Long Term Capital Gain. However, with respect to those shares, which the Assessee had sold within a period of one year, the gain was treated as arising out of business. The Tribunal confirmed the view of the CIT (Appeals) and treated such gain as Assessee's business income. This has given rise to the filing of the present Appeal by the Assessee. The Tribunal while confirming the view of the CIT (Appeals) in this respect made the following observations : 2.4 We have heard rival submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Glenmark Pharma Ltd., Reliance and RCVL there are repetitive transactions (Pg. 910 of the Paper book). The shares of Reliance were sold on 19.04.2006 for the first time. On 16.01.2006 the assessee purchase3d 99,000 shares of same company and same were sold on 19.05.2006 and 01.06.2006. Shares of Glenmark were traded more than once. The volume of the shares and repetitive nature of the sale and purchase of shares indicate the intention of the assessee. In our opinion, the assessee was dealing in shares as a treader rather than a investor. Considering the upward swing in the share market it purchased shares of a particular company in bulk and within a short span of time sold them and earned a huge profit. The FAA had found that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Assessing Officer in the assessment after scrutiny accepted this declaration of the assessee and therefore the department is acting inconsistently which is not permissible. The issue of the assessee suffering loss in the subsequent year arose after the assessment in the present year was completed. Quite apart,if in the later year the assessee had declared a loss on capital side, we wonder whether going against such a self declaration of the assesee, the Assessing Officer had to foist upon the assessee the conclusion that the loss was a business loss. If at all, it was up to the assessee to claim it as business loss if the assessee was satisfied with the gain being taxed as business income. Be that as it may, this would not be determi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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